What Constitutes Profanity on Television Today?

The specific issue being addressed in FCC vs. Fox Television Stations is pretty narrow and, well, uninteresting. It primarily has something to do with FCC procedures and administrative law.

The court is likely to leave the bigger picture stuff alone. During oral arguments however the Justices felt free to ask questions which might need to be addressed in future cases. Questions about society, profanity and broadcast television. [Transcript of Oral arguments.]

The big question, the most important question, is asked but not answered by Chief Justice Roberts.

CHIEF JUSTICE ROBERTS: Still, I gather that’s at issue with the constitutional questions. Does that still have the same force today when the broadcast medium is only one of several that are — that are available? In other words, it seems to me that the Commission might not be accomplishing terribly much if it regulates a particular medium when all sorts of other media, media, are available that don’t have the Commission’s oversight.

Is FCC regulation of the broadcast networks an anacronism of a bygone era? What’s the point in a world where anything and everything is available on cable and the internet 24/7? Is there continued value in such regulation? Is there a continued justification for such regulation? Does cable and the internet make strict regulation of the broadcast networks more or less desirable?

The FCC is moving in towards stricter standards. They availability of the unregulated media makes this desirable and defensible.

GENERAL GARRE: Most Americans still get their information and entertainment from broadcast TV. Most children — broadcast TV is extremely accessible to children because all they have to do is turn it on, and then they have network shows that they can have access to. And broadcast television is still broadcast in a way that invades the home, the place — the one place where people typically don’t expect to have uninvited, offensive–

JUSTICE STEVENS: Yes, but wasn’t the rationale for the lesser standard largely the scarcity of the frequencies?

GENERAL GARRE: I think that was the rationale in Red — Red Lion. This is Court in Pacifica didn’t rely on that rationale.

JUSTICE STEVENS: But it relied on it in Red Lion?

GENERAL GARRE: Yes. I — as we read the decision, Justice Stevens — and I understand that you wrote the plurality decision there. But, as we read the decision, the Court did not rest so much on the scarcity rationale, but, yet, on the unique pervasiveness of broadcasting, the unique accessibility to children, and the fact that broadcasting invades the home in a way that other technologies do not.

JUSTICE GINSBURG: That was before the Internet. Pacifica was in 1978.

GENERAL GARRE: It was, Your Honor. Now, in the Turner case this Court said at page 190 that broadcast medium is still the principal source of information in entertainment in affirming the lesser standard that this Court applies. We actually think that the fact that there are now additional mediums like the internet and cable TV, if anything, underscores the appropriateness of a lower First Amendment standard or safety zone for broadcast TV, because Americans who want to get indecent programming can go to cable TV, they can go to the Internet.

But broadcast TV is, as Congress designed that to be, the one place where Americans can turn on the TV at 8:00 o’clock and watch their dinner and not be expected to be bombarded with indecent language, either in an isolated basis or repeated basis. That’s a societal expectation that has grown up over the last 30 years since Pacifica. And it would be a remarkable thing to adopt the world that the networks are asking you to adopt here today, where the networks are free to use expletives, whether in an isolated or repeated basis, 24 hours a day, going from the extreme example of

Big Bird dropping the F-bomb on Sesame Street, to the example of using that word during Jeopardy or opening the episode of American Idol…

The impact of cable and the internet on broadcast standards is not the only interesting question brought up however. They also discussed the impact which previous television standards have on society. Who is a reflection of who?

JUSTICE KENNEDY: If there is — if there is a change in the community standards, does that justify a change in the FCC’s policies? And the second question and the reason I ask that is: Do you think today the community generally is more offended by these words or more tolerant of these words —

MR. PHILLIPS: Well —

JUSTICE KENNEDY: — as compared to what Pacifica was concerned with?

MR. PHILLIPS: I mean I — I believe that society is significantly more tolerant of these words today than it was in — 30 years ago.

JUSTICE SCALIA: Do you think your clients have had anything to do with that?

(Laughter.)

MR. PHILLIPS: In — in the scheme of things, probably very, very little to do with that compared to the way the language is used. Go to a baseball game, Justice Scalia. You hear these words every — every time you go to a ballgame.

JUSTICE SCALIA: You do, indeed, but you don’t have them presented as something that is — is normal in polite company, which is what happens when it comes out in — in television shows. This is a coarsening of matters that is — that is produced by –by the shows. So I am — you know, I — I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past.

MR. PHILLIPS: But the — I mean I think what Justice Stevens is getting at is: What has changed over the last 30 years? And if anything has changed, it would be exactly the opposite, which is they are going to be more and more tolerant of this language; not that they are less tolerant of this language. And, therefore, there is even less reason for the Commission to have taken the position that it did in this particular context.

JUSTICE SCALIA: More tolerant or more used to hearing it?

MR. PHILLIPS: I think both.

JUSTICE SCALIA: Candidly, I think there is a difference.

The Justices are not without a sense of humor of course:

JUSTICE STEVENS: Maybe I shouldn’t ask this, but is there ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny? Some of these things –(Laughter.)

JUSTICE STEVENS: — you can’t help but laugh at. Is that — is that a proper consideration, do you think?